Mwangi v. State

728 S.E.2d 729, 316 Ga. App. 52, 2012 Fulton County D. Rep. 1746, 2012 WL 1860710, 2012 Ga. App. LEXIS 479
CourtCourt of Appeals of Georgia
DecidedMay 23, 2012
DocketA12A0748
StatusPublished
Cited by2 cases

This text of 728 S.E.2d 729 (Mwangi v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mwangi v. State, 728 S.E.2d 729, 316 Ga. App. 52, 2012 Fulton County D. Rep. 1746, 2012 WL 1860710, 2012 Ga. App. LEXIS 479 (Ga. Ct. App. 2012).

Opinion

MlKELL, Presiding Judge.

Following a stipulated bench trial, Bernard Ndungu Mwangi appeals from his convictions for theft by taking, burglary, entering an automobile with intent to commit theft, and forgery. He contends that the trial court erred in denying his motions to suppress evidence seized and statements made to police both before and after his incarceration. For the reasons that follow, we affirm.

In reviewing a trial court’s ruling denying a motion to suppress, the following three principles apply: First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a [53]*53reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. Because there was testimonial evidence in this case, we do not apply a de novo standard of review.1

So viewed, the record shows that at the hearing on the motions to suppress, Officer M. J. Masselter of the Cobb County Police Department testified that at about 2:00 a.m. on January 25, 2010, he and another officer responded after a caller to 911 reported that the motion-sensor lights on the front and back of her house came on after a man she did not know parked his truck in her driveway, blocking it, and walked away. The truck in question belonged to a business in another area. As the officers approached the house where the 911 call originated, Masselter saw Mwangi, wearing dark clothing and riding a toy scooter down a hill toward the police car. The police and Mwangi each stopped at approximately the same time, about 100 to 150 feet apart. Masselter identified himself and his companion as police officers. Mwangi allowed himself to be patted down. No weapons were found. Mwangi consented to a search of his pockets, in which Mas-selter found a pair of gloves and a key. Once the officers determined that the key fit the truck, they detained Mwangi.

At the scene, Mwangi told Cobb County Police Officer Dennis Ryan that he had been walking in people’s yards and looking into cars; that the truck did not belong to him; but that he had parked it in the driveway. Mwangi, still detained but not handcuffed, rode in Ryan’s police car to show Ryan where he got the truck. After the truck’s owner confirmed that the truck was missing, Ryan handcuffed Mwangi and read him his Miranda rights. Mwangi then told Ryan that he took the scooter from the house where he parked the truck, and he directed Ryan back to the house where the 911 call originated.

Cobb County Police Detective J. W. Friedlander testified that the following day, he interviewed Mwangi at the Cobb County Adult Detention Facility, where Mwangi was in custody, and advised him of his Miranda rights. Mwangi admitted to the theft of the truck, to entering numerous other vehicles in the previous months, and to forging and cashing checks he had stolen from checkbooks he found [54]*54in the vehicles. He also admitted that he had some stolen items at his house. During the recorded interview, Friedlander asked for and received consent to search Mwangi’s house; but because other people lived there and Mwangi was not the owner, Friedlander obtained a search warrant. A search of Mwangi’s room yielded items that did not belong to Mwangi, including an iPod Touch, a Wachovia bank statement, and a checkbook. The trial court denied Mwangi’s motions to suppress, and entered a final disposition. Mwangi moved for a new trial, which the trial court denied. This appeal followed.

1. In his first enumeration, Mwangi asserts that the trial court erred in denying his motion to suppress evidence seized as a result of his initial detention, search, and seizure, which he argues were unlawful. We find no error.

“There are at least three types of police-citizen encounters: verbal communications which involve no coercion or detention; brief ‘stops’ or ‘seizures’ which must be accompanied by a reasonable suspicion; and ‘arrests’ which can only be supported by probable cause.”2

A first-tier encounter never intrudes upon any constitutionally protected interest since the purpose of the Fourth Amendment is not to eliminate all contact between police and citizens, but simply to prevent arbitrary and oppressive police interference with the privacy and personal security of individual citizens. On the other hand, a second-tier encounter may violate the Fourth Amendment if the officer briefly “stops” or “seizes” a citizen without reasonable suspicion. Reasonable suspicion exists when an officer has a particularized and objective basis for suspecting that a citizen is involved in criminal activity. Moreover, a “seizure” within the meaning of the Fourth Amendment only occurs when, in view of all the circumstances surrounding the incident, a reasonable person believes that he is not free to leave.3

(a) Mwangi contests the initial stop as unlawful. We disagree. Masselter testified that, in the initial contact between the officers and Mwangi, Mwangi stopped at the same time the police car stopped; then the police approached him and Mwangi identified himself. Masselter testified that he initially thought that Mwangi, [55]*55who was riding a child’s toy scooter, was a juvenile illegally out after curfew. Officers established that Mwangi was an adult. Mwangi did not attempt to flee. Masselter testified that at the time of the initial contact, “visibility of [Mwangi] was very poor. The roadway was wet, and he was wearing dark clothing,” so Masselter turned on a police spotlight because “it was difficult to see [Mwangi].”

Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, ask to examine the individual’s identification, and request consent to search, as long as police do not convey a message that compliance with their requests is required.4

The police in the instant case did not turn on their blue lights. There was no evidence that this initial encounter involved coercion or detention. The trial court did not err in finding the initial encounter lawful.

(b) Mwangi further challenges the pat-down and pocket search as unlawful. This argument fails.

Second-tier encounters occur when an officer conducts a brief investigative Terry5 stop of a citizen. At this level, even in the absence of probable cause, an officer may stop a person and briefly detain him, if the officer has a particularized and objective basis for suspecting the person is involved in criminal activity.6

Masselter had a particularized and objective basis for suspecting that Mwangi was involved in criminal activity, because Masselter knew that within the preceding hour or so, a woman had called 911 after the motion-sensor lights on her home came on and after a strange truck had blocked her driveway.

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Related

May v. the State
780 S.E.2d 455 (Court of Appeals of Georgia, 2015)

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Bluebook (online)
728 S.E.2d 729, 316 Ga. App. 52, 2012 Fulton County D. Rep. 1746, 2012 WL 1860710, 2012 Ga. App. LEXIS 479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mwangi-v-state-gactapp-2012.